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Lululemon has also taken legal action, so far unsuccessful, to protect the use of their swoosh–that logo you can find somewhere, in varying sizes and colors, on every Lulu garment letting you know it’s theirs. Trouble is, Lululemon had not consistently used the same size, color combinations or even the same style of swoosh (although it has always been the same shape, which is still subject to trademark protection). As a result, the U.S. Patent and Trademark Office refused its trademark application to protect the swoosh as incorporated into its clothing designs. The regulators decided that Lululemon’s swoosh, other than the originally trademark-protected version, is merely ornamental and not distinctive enough for trademark protection.

What went wrong is a cautionary tale about how to protect a brand—anything that allows consumers to identify and distinguish a particular product, company or service. Brands usually consist of names, logos, colors, slogans and anything else distinctive that is associated with a specific product, service, or business. Whether you are an entrepreneur concerned about protecting the brand for your own product or service; or an employee at a company with a brand to protect, here’s what you can learn from the Lululemon experience.

1. Register your trademark. Registration for a logo is like having a legal monopoly on a look. So protect your logo, your product design, your slogan or whatever is unique to your brand, and then use it consistently. Lululemon did that with its wave design logo.

Louboutin didn’t try to protect its red sole until it was almost too late. It got a trademark for its unique red sole because it was distinctive enough to give the consumer a signal that it was from one single shoe designer. But even Louboutin doesn’t have the right to the red sole when an entire shoe is red. They fought–and lost–a case on this issue against Yves St. Laurent, which sold a monochromatic red shoe. (For more about this case, see my post, co-authored with Gary Glisson, “Lady Gaga, Jennifer Lopez And Other Celebs Helped Louboutin Get Trademark For Red Soles.”) The moral of this story is: protect your trademark early so that it is recognized as your unique brand.

2. Avoid becoming generic. Don’t use your trademark as a noun. Lululemon doesn’t sell “Lululemons.” It sells “Lululemon brand yoga pants.” Aspirin, escalator, Laundromat, Thermos and even zip code are just a few terms that used to be subject to trademark protection. But due to lack of policing their use, they became generic terms and eventually lost that protection. Whatever your brand, use it early and often. Keep your monopoly front and center. Don’t assume that others recognize your brand as uniquely yours. Work hard to associate your brand with yourself, your product, your service, or whatever it is you are trying to sell.

3. Enforce your brand against counterfeiters. Lululemon was able to keep Calvin Klein from using its yoga pant design. Design patents protect unique designs, which consumers remember and associate with the maker. While details of the lawsuit are private, those Calvins seem to have disappeared from store shelves. And Louboutin has kept its monopoly on its red sole trademark.

4. Understand and meet consumer expectations. Building brand recognition is half the battle of building a successful business. But once you have won that recognition, you have to be very careful to protect what you have built. The day after Lululemon’s “see-through pants” were pulled off of the shelves, their stock did a downward dog, falling about 6% before recovering. There are many explanations for why those pants made it into stores, including a glitch in the company’s product testing protocol and poor monitoring of its fabric supplier. Mistakes are inevitable. When they occur, a quick response and repair is key to recovering and preserving positive brand recognition.

5. Use your trademark consistently. Designs, slogans, logos and anything else that distinguishes you from the pack are also specific, until they get diluted. This can happen when you are not careful about consistently using your brand. Unless a logo is used as a trademark, protection is more difficult. In the Lululemon case, they blew up—and changed—their logo and made it part of the design of the product itself. They might have had a fighting chance if they had consistently used the same size and color swoosh and placed it in the same place each time, like the IZOD alligator or the Ralph Lauren polo pony. They still have their original swoosh, but no protection for their stylized version. (Although when it comes to revealing yoga pants, they might prefer a little confusion on the part of your fellow yoga practitioners as to who made your pants.)

As the Lululemon experience suggests, sometimes a swoosh is just a swoosh unless you protect and distinguish it early and often. Then you need to “live the brand,” just as marketing experts recommend. You want the public to associate certain positive qualities with you, your company, or your products or services. But you also have to consistently deliver on those qualities.

Once a company has disappointed the public, it takes hard work to rebuild the brand. Lululemon’s brand was that it offered quality, stylish clothing. The challenge now is to keep quality debacles in its past so fans will stay with the brand.

A brand is meant to distinguish you or your company from the pack. But as Dr. Suess taught us in his story by the same name, “Sneetches are Sneetches. And no kind of Sneetch is the best on the beach.”

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